Patently nonsense: smartphones, scanners and open source
By Simon Bisson & Mary Branscombe in Editorial
Posted in Hardware, Windows Mobile, Server, Security, Microsoft, Mobile, Apple on
The latest patent idiocies could put phone prices up and increase your security bill. And only one of the cases would be fixed by my own theory of patents (if you don’t yourself manufacture the item or use the process protected by a patent, I think you shouldn’t be able to benefit from the patent by extorting money from companies that do go to the effort of actually making something).
That would get rid of the patent trolls who buy up IP and sneak it past the patent office. Take the owners of the ludicrous new smartphone patent, which seems to ignore more prior art than I could shake a phone battery at. Read through http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=%2Fnetahtml%2FPTO%2Fsearch-bool.html&r=1&f=G&l=50&co1=AND&d=PTXT&s1=7,321,783&OS=7,321,783&RS=7,321,783 and you’ll find it’s not Nokia, RIM, Microsoft, HTC, Palm, Apple, Symbian, Sony Ericsson, HP or Motorola claiming to have invented the smartphone; it’s one Ki Il Kim of Minerva Industries, Los Angeles.
Minerva is part of a company called Gigatech, which claims to hold patents on “user-operated cell phones for audio/video and sensor event reporting” - and on air bags and seat belts. The company is also claiming patents for memory cards, connecting phones by USB and putting a mobile phone holder and charger on the dashboard of your car.
Minerva/Gigatech claims that CEO John Kim was 2003 Businessman of the Year - although the link that’s supposed to say who gave him the award reloads the same page and Google can’t find any reference to the honour. 2003 was, however, the year that Kim won a lawsuit against Shell to get royalty payments for those sun shades you stick to the inside of your car windows. Just what the inventor of the smartphone would be working on…
Click on the Products section of the Gigatech site and you’ll find a list of patents rather than phones; the News section is full of the lawsuits the company has filed. Last summer it sued 41 mobile phone companies, and this time the LA lawyers didn’t even wait until the patent came through to sue Nokia, RIM, Apple, HP, Motorola, HTC, Sony Ericsson, Samsung, Helio, Sprint, AT&T and a few others for good measure.
And even though Gigatech and its lawyers are based in LA the lawsuits are filed in Texas, in a court that’s notorious for enforcing dubious patents.
Minerva wasn’t even founded until 1996. That’s the year that Nokia shipped its first Communicator - and Philips sold a long-forgotten phone with an Internet connection then as well. By 1996 I’d been using an analogue Motorola StarTac to get online from the train for months (I plugged it in to an HP OmniBook and read my mail on CIX at 2400 baud and 125 miles an hour on the journey from Bath to London).
It’s a little more complicated with Trend Micro and Barracuda. Trend says its patent covers gateway virus scanning and wants Barracuda to take the open source ClamAV software out of its appliances. Barracuda says ’shan’t’ on the grounds that “scanning for viruses at the gateway is an obvious and common technique that is utilized by most businesses worldwide.” You’re not supposed to be able to get a patent for anything that could be classed as specialist subject - the bleeding obvious. Between then Trend and Barracuda are wading through the US patent system, US federal court and - because some of the software was written outside the US - the import-overseeing International Trade Commission. And while patent lawsuits are two a penny these days, this one raises some interesting issues around open source and patents.
Open source projects that infringe on patents can be hard to shut down, if they’re widely distributed. But it’s easier to take legal action against a company with money and business to lose than against individual programmers. Adopt an open source project that’s not covered by a patent promise and you’re getting a responsibility as well as a resource.
SourceFire acquired ClamAV last summer and its open source background with SNORT means the company will understand that open source isn’t a free ride. Less experienced companies - whether they’re developing or just using open source software - might not realise that one reason you pay more for commercial software is that the software company you buy it from is funding a legal department who can take the time to go to court and building up a patent portfolio of its own. Mutually assured patent claims keep a lot of cases out of court.
Interestingly, Barracuda is going down the open source route in compiling its case against Trend and asking the community for examples of software that had network virus scanning features before September 1995. Maybe the best thing for patent reform would be a comment page for every patent application where we could point out all the academic papers and shipping products that predate the ‘invention’.
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